Employers that use consumer reporting agencies to conduct credit or background checks must let both job applicants and employees know their rights under the FCRA by providing this form along with the FCRA disclosure and authorization. Failure to do so exposes employers to significant legal risk, including government penalties and private lawsuits, including class actions. Also, note that multiple courts have found that the FCRA disclosure and authorization forms must be completely “stand alone” from other onboarding or other documentation provided to applicants/employees and should not contain other language beyond the officially prescribed language. See e.g., Poinsignon v. Imperva, Inc., No. 17-cv-05653-EMC

This revised form was initiated by legislation earlier this year that, in part, amended the FCRA by requiring notice of availability of “national security freezes” that must be provided to consumers. The notice informs consumers they have a right to place a “security freeze” on their credit report, which will prohibit a consumer reporting agency from releasing information in the report without express authorization from the consumer.

As always, our lawyers are available to assist with compliance with this, and all other employment-related requirements.

Contact: Jill Kirila

E jill.kirila@squirepb.com T +1 614 365 2772

]]>https://www.employmentlawworldview.com/compliance-now-required-new-fcra-summary-of-rights-released-us/feed/0Jill.kirila@squirespb.comHome Depot murder case teaches that employer may be held liablehttps://www.employmentlawworldview.com/home-depot-murder-case-teaches-that-employer-may-be-held-liable/
https://www.employmentlawworldview.com/home-depot-murder-case-teaches-that-employer-may-be-held-liable/#respondThu, 27 Apr 2017 22:38:45 +0000http://www.employmentlawworldview.com/?p=5762Continue Reading]]>On April 26, 2017, the Seventh Circuit Court denied Home Depot’s request to reconsider its reversal of the decision to remand back to the lower court the matter of Anicich v Home Depot USA Inc., et al. Home Depot Inc. will face a lawsuit claiming that the retailer’s negligence led to a supervisor’s murdering a pregnant employee at an offsite event. The court held that the home improvement chain allowed the murderer to have supervision over the employee even after it knew he had a history of harassing female subordinates. This ruling overturned a U.S. District Court’s dismissal of the case ruling that Home Depot couldn’t have known that Brian Cooper’s verbal abuse and intimidation of Alisha Bromfield would have led to her murder in 2012. Cooper was sentenced in 2014 to two life terms without the possibility of parole for first-degree intentional homicide and third-degree sexual assault.

Home Depot had argued that the murder of Bromfield and her unborn daughter occurred off premises and that Cooper didn’t commit the crime using store property, meaning the company couldn’t be held liable for negligence under Illinois law.

But the Seventh Circuit said the employer did give Cooper something with which to harm Bromfield — his power to fire her or reduce her hours. Home Depot’s duty to monitor its managers’ conduct and Cooper’s alleged abuse of his supervisory authority to force Bromfield to join him on the trip that ended in her death could support liability, the Seventh Circuit said. An employer may be vicariously liable for the off-duty conduct of a supervisor it knows or should have known was sexually harassing the victim, the court said. Store managers knew about the behavior, the court said, and even ordered Cooper to take anger management classes but didn’t follow up to see if he attended.

The company has an obligation under Title VII of the Civil Rights Act to discipline harassing employees, the panel said.

So what do employers need to know about hiring, supervising and retaining employees in light of the 7th Circuit Court’s ruling?

Liability may extend outside the scope of employment to offsite events. How “far” liability extends depends on the authority one exerted, and if the harm was reasonably foreseeable. Citing Burlington Industries, Inc. v. Ellerth, the court noted that the law has moved toward holding employers vicariously liable for their supervisory employees’ intentional torts committed outside the scope of their employment but by abusing their supervisory authority, subject to an affirmative defense. To succeed on a claim for negligent hiring, supervision, or retention, a plaintiff must demonstrate that the employee’s “particular unfitness … rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position. It is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence. Rather, it is sufficient if, at the time of the defendant’s action or inaction, some harm could have been reasonably foreseen.

Relative to the hiring process, there is also potential liability as it relates to routine back-ground checks for those applying for supervisory roles. The courts will consider the facts on a case by case basis, but if a background check indicates someone has a history of violent tendencies or other risk factors, an employer could be held liable for the negligent conduct of that employee if a court determines it was reasonably foreseeable that individual could harm another employee and the employer did nothing to intervene. Conversely, if you fail to do an employment background check on applicants for certain positions, you could be vulnerable to a negligent-hiring lawsuit by a worker who’s been hurt by a violent employee. Courts are increasingly finding that an employer has a duty of care to protect workers from injury caused by an employee who an employer knew (or reasonably could have been expected to know) posed a risk.

Bottom line, employers should continue to do their background checks, but understand that if they hire an individual with known risk factors, they are potentially on the hook for whatever is in that report.

]]>https://www.employmentlawworldview.com/home-depot-murder-case-teaches-that-employer-may-be-held-liable/feed/0Jill.kirila@squirespb.comBan the Box – It’s Not Too Late!https://www.employmentlawworldview.com/ban-the-box-its-not-too-late/
https://www.employmentlawworldview.com/ban-the-box-its-not-too-late/#respondTue, 07 Mar 2017 15:09:02 +0000http://www.employmentlawworldview.com/?p=5655Continue Reading]]>If you have not heard about the “Ban the Box” movement, it is time to take notice. Ban the box refers to a check box present on many standard job applications, whereby an applicant is asked whether they have any prior criminal history. Plainly speaking, proponents of Ban the Box initiatives are seeking to eliminate this part of the application process to enable people with criminal convictions a fair chance at finding gainful employment. In less than a decade, 24 states – including California – have adopted some form of the ban, often for public employees. Nine states have banned the box for private employers, as well. In 2014, San Francisco enacted a ban for private employers, and just this past January, a similar initiative has gone into effect in Los Angeles.

The Basics

Article 9 was added to the Los Angeles Municipal Code on December 9, 2016, to take effect January 22, 2017. Its provisions apply to employers with ten or more employees. The Article actually does quite a bit more than simply ban the box. Under the new terms, employers may not, in any way, inquire about or require disclosure of an applicant’s criminal history until after a “conditional offer” is made. Even then, an adverse action – including withdrawal of the conditional offer – cannot be taken unless the employer performs a written assessment taking into consideration, at a minimum, the factors identified by the Equal Employment Opportunity Commission when considering criminal history. The employer must also effectively link the criminal history with the risks inherent in the duties of the position sought.

That’s not all: the assessment must be given to the applicant, and the position must then be held open for five days. During this time, the applicant may submit information or documentation to clarify their criminal history or bolster their application. If after this “fair chance process,” the employer again finds adverse action is appropriate, the employer is obligated to notify the applicant of the decision, and provide them with a copy of the assessment.

Notice, Posting, and Record Retention Requirements

The Article creates some new notice and posting requirements. First, any solicitation or advertisement seeking applicants for employment must state that the employer will consider qualified applicants with criminal histories consistent with the requirements of the Article. Further, employers must place a notice informing applicants of the provisions of the Article in a conspicuous place at every workplace, job site, or location in the employer’s control visited by applicants. Notice must also be provided to each labor union or representative of workers with which they have a collective bargaining agreement.

Employers must also retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Article for a period of three years. These records must be produced to the Department of Public Works in an administrative enforcement proceeding under the Article.

Exceptions

There are four exceptions to application of the article:

If an employer is required by law to run a criminal background check on an applicant to obtain information on an applicant’s conviction;

If the job sought requires the possession or use of a gun;

If the person who has been convicted of a crime is prohibited by law from holding the position sought; and

If an employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Enforcing the Article

The Department of Public Works has authority to investigate complaints of violations of the Article, and to engage in administrative enforcement proceedings to obtain remedies against employers. These remedies include civil penalties, and “any other legal and/or equitable relief as may be appropriate to remedy the violation.” Penalties accrue at $500 per violation for failure to post the appropriate notices, or to retain appropriate records. Any other violation will result in fines of $500 for the first instance, $1,000 for the second, and $2,000 for the third and any subsequent violations.

Grace Period

Finally, the Article contains a built-in grace period until July 1, 2017. Any violation of the Article prior to July 1 will result in a written warning.

Ultimately, it is not too late to ensure there are no improper requests or inquiries for an applicant’s criminal history. Employers should review applications, solicitations for employment, and interview questions and processes to make certain the entire hiring process is in compliance with the new provisions.